MAYARANI DUTTA Vs. BHUPAL BANERJEE

JUDGEMENT

(1.) The plaintiff is the petitioner. She filed the present suit and asked for a temporary injunction to restrain the defendant-opposite party from making any construction on the disputed land or constructing any soak pit and changing the nature of the disputed land. The prayer was refused. Against that order, Misc. Appeal No. 151 of 1976 was filed in the Court of the District Judge, Burdwan. In that Court also an application was filed to issue an order of temporary injunction to restrain the respondent from constructing any soak pit or making any construction or from changing the nature of the disputed land. No ad interim order was granted. Against that order the present revisional application has been filed.

(2.) A preliminary objection has been raised on the basis of the well-known decision of Sarttju Prosad v. Ganga Prosad in . The Benph of our Court has stated that where a prayer for temporary injunction is made, each order thereon is a final one and consequently an appeal lies.

(3.) The learned Advocate appearing on behalf of the petitioner has referred to the case of Kalahasti v. P. Munuswamy in to show that in view of the provisions of Section 104 (2) of the Code of Civil Procedure read with the provisions of Order 43, Rule 1 of the Code, the right of an appeal enumerated in Order 43, Rule 1 is subject to the stipulation contained in Section 104 (2). Consequently, a revision and not an appeal lies. To support that contention reference has also been, made to the case of S.R. Chatterjee v. Hindusthan Steel Ltd. in (1969) 73 Cal WN 228 to show that an interim injunction granted by the lower appellate Court is an order passed in appeal and therefore is not appealable under Section 104 (2) of the Code of Civil Procedure.